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On disputes regarding military service

Case No. 44/2010

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF PARAGRAPH 1 (WORDING OF 7 JULY 1999) OF ARTICLE 48 OF THE REPUBLIC OF LITHUANIA LAW ON THE ORGANISATION OF THE NATIONAL DEFENCE SYSTEM AND MILITARY SERVICE WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 10 December 2012

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretaries of the hearing—Daiva Pitrėnaitė and Sigutė Brusovienė,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, on 4 December 2012, in the Court’s sitting considered, under written procedure, constitutional justice case No. 44/2010 subsequent to the petition (No. 1B-50/2010) of the Supreme Administrative Court of Lithuania, the petitioner, requesting to investigate whether Paragraph 1 (wording of 7 July 1999) of Article 48 of the Republic of Lithuania Law on the Organisation of the National Defence System and Military Service is not in conflict with Paragraph 1 of Article 30 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

Petition No. 1B-50/2010 of the Supreme Administrative Court of Lithuania, the petitioner, is substantiated by the following arguments.

The impugned legal regulation consolidated in Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law on the Organisation of the National Defence System and Military Service (hereinafter also referred to as the Law) used to provide expressis verbis that courts do not have the right to solve certain disputes of military service, inter alia regarding the lawfulness and reasonableness of a disciplinary penalty—reduction of the remuneration for service. While referring to the official constitutional doctrine, the petitioner notes that the right of a person to apply to court regarding defence of his violated rights which is consolidated in Paragraph 1 of Article 30 of the Constitution is an absolute one, it is not permitted to limit, nor to deny it; the constitutional right of the person to apply to court may not be artificially restricted, nor that the implementation of this right may be unreasonably burdened.

The petitioner also notes that in the Constitutional Court’s ruling of 2 July 2002, in which one investigated the compliance of Paragraph 2 of Article 48 of the Law, under which the courts could only try disputes regarding the procedure of dismissal from military service and not the reasonableness of the dismissal, with the Constitution, one held that the relations of the organisation of the national defence system and military service have their own peculiarities and that, when one takes account of these peculiarities, it is permitted to establish by laws various ways of settling disputes regarding violation of the rights and freedoms, including out-of-court settlement procedure of such disputes. However, the peculiarities of the relations of the organisation of the national defence system and military service may not deny the constitutional right of persons to appeal to court to defend their rights and freedoms.

Thus, in the opinion of the petitioner, the impugned legal regulation is in conflict with Paragraph 1 of Article 30 of the Constitution and with the constitutional principle of a state under the rule of law.

II

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the Seimas, the party concerned, who were Vitalij Dmitrijev, Head of the Office of the National Security Committee of the Office of the Seimas, and Dainius Žalimas, an advisor-lawyer to the Minister of the Ministry of the National Defence of the Republic of Lithuania, in which it is stated that the impugned legal regulation may be in conflict with the Constitution. The position of the representatives of the party concerned is substantiated by the following arguments.

Under the Constitution, the defence of his violated rights in court is guaranteed to the person regardless of his legal status; the violated rights of the person as well as his legitimate interests must be defended in court regardless of whether or not they are directly consolidated in the Constitution. By Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law, in which, taking account of the peculiarities of the relations of military service, one establishes the procedure for trying disputes regarding the disciplinary penalties imposed on servicemen, under which these disputes are not tried by courts, one denies the right of a person to apply to court irrespective of his status and of the fact whether his violated right, linked to imposition of the disciplinary penalty, is directly consolidated in the Constitution or not, therefore, the legal regulation which is impugned by the petitioner may actually be in conflict with Paragraph 1 of Article 30 of the Constitution and the Constitutional principle of a state under the rule of law.

The Constitutional Court

holds that:

  1. The Supreme Administrative Court of Lithuania, the petitioner, requests to investigate whether Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law, insofar as it establishes that the courts do not try disputes regarding the disciplinary penalties imposed on servicemen, is not in conflict with Paragraph 1 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law.

The doubts of the petitioner regarding the compliance of the impugned legal regulation with the Constitution are essentially substantiated by the fact that by means of this legal regulation one restricts the right of a person to apply to court.

  1. On 5 May 1998, the Seimas adopted the Law on the Organisation of the National Defence System and Military Service which came into force on 27 May 1998 and whereby one established the fundamentals of organisation, management and control of the national defence system, as well as the procedure for fulfilling military service and provision of servicemen, also specific features of civilian service within the national defence system (Article 1).

2.1. Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law, which is impugned by the petitioner in this constitutional justice case, prescribed:

“The disputes regarding admission into military service, removal from office, transfer to another position, awarding of military ranks, imposition of disciplinary penalties, and extension of a contract on military service shall be examined in accordance with the procedure established by the Minister of National Defence. A decision may be appealed against to a commander or official who is superior by subordination up to the Minister of National Defence inclusive. These disputes shall not be tried by courts.”

Thus, Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law established the procedure for examination of disputes related to military service or arising in military service: such disputes had to be examined under the procedure established by the Minister of National Defence, whereas one could appeal against the adopted decision to a commander or official who is superior by subordination up to the Minister of National Defence inclusive. It was also established that the specified disputes of military service shall not be examined by courts.

While construing the legal regulation (impugned by the petitioner) which is consolidated in Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law in the aspect investigated in the constitutional justice case at issue, it needs to be noted that it established a non-judicial procedure for examining disputes of military service, i.e. disputes regarding admission into military service, removal from office, transfer to another position, awarding of military ranks, imposition of disciplinary penalties, and extension of a contract on military service. This means that, under the legal regulation impugned by the petitioner, the courts were not allowed to try disputes not only regarding imposition of disciplinary penalties upon servicemen, but also other disputes of military service. Taking account of that, irrespective of the fact that the Supreme Administrative Court of Lithuania, the petitioner, requests to investigate whether Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law, only insofar as it established that the courts do not try disputes regarding the disciplinary penalties imposed upon servicemen, was not in conflict with the Constitution, the Constitutional Court will investigate whether Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law was not in conflict with the Constitution, insofar as it established that the courts do not try disputes regarding admission into military service, removal from office, transfer to another position, awarding of military ranks, imposition of disciplinary penalties, and extension of a contract on military service.

2.2. The legal regulation established in Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law was amended by the Republic of Lithuania Law on Amending Article 48 of Law on the Organisation of the National Defence System and Military Service which was adopted by the Seimas on 14 December 2010 and came into force on 31 December 2010.

Paragraphs 1 and 2 (wording of 14 December 2010) of Article 48 of the Law prescribed:

“1. The disputes regarding removal from office, transfer to another position, awarding of military ranks, imposition of disciplinary penalties, extension of a contract on military service and other disputes over military service, with the exception of the disputes referred to in Paragraph 2 of this Article, shall be considered in accordance with the mandatory preliminary out-of-court procedure for examining disputes over military service as established by the Statute of Military Discipline. The final decision adopted upon examining a dispute in accordance with the mandatory preliminary out-of-court procedure for examining disputes over military service as established by the Statute of Military Discipline may be appealed against to a regional administrative court in accordance with the procedure laid down by laws within 20 days from the receipt of the decision or a notification of the decision.

  1. The disputes regarding admission to military service, dismissal from professional military service or volunteer service, also expulsion from a military training establishment in the absence of a violation of discipline shall be examined by administrative courts in accordance with the procedure established by the Law on the Proceedings of Administrative Cases.”

While having compared the legal regulation established in Paragraph 1 (wording of 14 December 2010) of Article 48 of the Law with the one established in Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law, it is obvious that it changed in the aspect that it no longer regulates examination of disputes regarding admission to military service, as well as in the aspect that it establishes a different procedure for examination of disputes of military service: such disputes are examined mandatorily under the procedure established by the Statute of Military Discipline, i.e. under the out-of-court procedure, whereas the final decision may be appealed against to a regional administrative court.

Thus, the legal regulation (impugned by the petitioner) which is consolidated in Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law changed essentially and it no longer included a provision that the courts do not try the specified disputes related to military service.

It needs to be noted that the legal regulation consolidated in Paragraph 1 (wording of 14 December 2010) of Article 48 of the Law is not a matter of investigation in the constitutional justice case at issue.

2.3. Under Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of the impugned legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings. The Constitutional Court has held that the same can also be said as regards the cases when the impugned legal act (part thereof) was not repealed, however, the legal regulation established therein was changed (inter alia the Constitutional Court’s decision of 14 March 2006, the rulings of 28 May 2010, 6 January 2011 and 31 January 2011).

However, as it has been held by the Constitutional Court more than once, when a court investigating a case applies to the Constitutional Court after it has doubts concerning the compliance of a law or other legal act applicable in the case with the Constitution (other legal act of higher power), the Constitutional Court has a duty to investigate the request of the court regardless of the fact whether the impugned law or other legal act is valid or not.

  1. The Constitutional Court has held more than once that the right to apply to court is an absolute one; this right may not be limited or denied (inter alia the Constitutional Court’s rulings of 17 August 2004, 29 December 2004 and 13 May 2010).
  2. In this context it needs to be noted that on 2 July 2002 the Constitutional Court adopted the Ruling “On the compliance of Paragraph 2 of Article 48 of the Republic of Lithuania Law on the Organisation of the National Defence System and Military Service with the Constitution of the Republic of Lithuania.” In that constitutional justice case the Constitutional Court assessed the legal regulation consolidated in Paragraph 2 (wording of 5 May 1998) of Article 48 of the Law, under which an appeal could be lodged with the court regarding the violation of only the procedure for dismissal from professional military service established by legal acts, but a person was prohibited from appealing to court as regards the reasonableness of his dismissal from military service.

In its ruling of 2 July 2002, the Constitutional Court recognised the provision of Paragraph 2 (wording of 5 May 1998) of Article 48 of the Law that in cases of dismissal from professional military service, an appeal may be lodged with the court only regarding the violation of the dismissal procedure established by the legal acts as being in conflict with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law.

  1. The Constitutional Court’s ruling of 2 July 2002 inter alia held:

– the constitutional principle of judicial protection is established in Paragraph 1 of Article 30 of the Constitution; in a democratic state the court is the main institutional guarantee of human rights and freedoms; the constitutional principle of judicial protection is universal; a person is guaranteed protection of his violated right in court regardless of the legal status of this person; the violated rights and legitimate interests of persons must be protected in court irrespective of the fact whether they are directly established in the Constitution or not;

– under the Constitution, the legislator has a duty to establish the legal regulation whereby all disputes regarding the violation of the rights or freedoms of a person might be possible to be settled in court; an out-of-court dispute settlement procedure may also be provided for, however, it is not permitted to establish such legal regulation which denies the right of an individual, who thinks that his rights or freedoms are being violated, to defend his rights and freedoms in court;

– the relations of the organisation of the national defence system and military service have their own peculiarities; taking account of these peculiarities, it is permitted to establish by laws various ways of settling disputes regarding violation of the rights and freedoms, including out-of-court settlement procedure of such disputes, however, the peculiarities of the relations of the organisation of the national defence system and military service may not deny the constitutional right of persons to apply to court to defend their rights and freedoms;

– Paragraph 1 of Article 109 of the Constitution is inseparably linked with Paragraph 1 of Article 30 of the Constitution in which the right of any person to appeal to court concerning protection of his violated rights is entrenched, with the principle of a law-governed state enshrined in the Constitution, and with the inborn right of individuals to justice.

  1. It needs to be noted that the legal regulation which is consolidated in Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law impugned in the constitutional justice case at issue, under which the courts used not to try certain disputes of military service, is analogous in the impugned aspect to the legal regulation (consolidated in Paragraph 2 (wording of 5 May 1998) of Article 48 of the Law) which was assessed in the constitutional justice case (in which the aforementioned ruling of 2 July 2002 was adopted), under which courts did not try disputes as regards the reasonableness of a person’s dismissal from military service, i.e. the compliance of the legal regulation consolidated in Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law with the Constitution is impugned essentially in the same aspect as it was impugned in the constitutional justice case in which the Constitutional Court assessed the constitutionality of Paragraph 2 (wording of 5 May 1998) of Article 48 of the Law—namely that the courts used not to try certain disputes on military service and, thus, the constitutional right of a person to apply to court is restricted.
  2. The Constitutional Court has held that the legal position of the Constitutional Court (ratio decidendi) in the corresponding constitutional justice cases has the significance of the precedent (the Constitutional Court’s rulings of 22 October 2007, 9 February 2010, 22 December 2011 and 5 September 2012).
  3. It has been mentioned that the right to apply to court is an absolute one; this right may not be limited or denied. It has also been mentioned that the peculiarities of the relations of the organisation of the national defence system and military service may not deny the constitutional right of a person to apply to court to defend his rights and freedoms.
  4. Thus, it needs to be held that by the legal regulation established in Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law, one violated the right of a person to apply to court while seeking that the dispute would be settled and justice would be administered, therefore, the legal regulation impugned by the petitioner, insofar as it prescribed that the courts do not try disputes regarding admission into military service, removal from office, transfer to another position, awarding of military ranks, imposition of disciplinary penalties, and extension of a contract on military service, was in conflict with Paragraph 1 of Article 30 of the Constitution which consolidates the right of a person to apply to court, with the provision consolidated in Paragraph 1 of Article 109 thereof that, in the Republic of Lithuania, justice shall be administered only by courts, as well as with the constitutional principle of a state under the rule of law.
  5. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 (wording of 7 July 1999) of Article 48 of the Law, insofar as it prescribed that the courts do not try disputes regarding admission into military service, removal from office, transfer to another position, awarding of military ranks, imposition of disciplinary penalties, and extension of a contract on military service, was in conflict with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

ruling:

To recognise that Paragraph 1 (wording of 7 July 1999, Official Gazette Valstybės žinios, 1999, No. 64-2069) of Article 48 of the Republic of Lithuania Law on the Organisation of the National Defence System and Military Service, insofar as it prescribed that the courts do not try disputes regarding admission into military service, removal from office, transfer to another position, awarding of military ranks, imposition of disciplinary penalties, and extension of a contract on military service, was in conflict with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is promulgated in the name of the Republic of Lithuania.

Justices of the Constitutional Court:                         Egidijus Bieliūnas

                                                                                             Toma Birmontienė

                                                                                             Pranas Kuconis

                                                                                             Ramutė Ruškytė

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis